SB 139: "An Act relating to fees for certain uses of state water and the accounting and appropriation of those fees; relating to authorizations for the temporary use of state water; making other amendments to the Alaska Water Use Act; and providing for an effective date."
00 SENATE BILL NO. 139 01 "An Act relating to fees for certain uses of state water and the accounting and 02 appropriation of those fees; relating to authorizations for the temporary use of state 03 water; making other amendments to the Alaska Water Use Act; and providing for an 04 effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. The uncodified law of the State of Alaska is amended by adding new sections 07 to read: 08 FINDINGS AND POLICY REGARDING STATE WATER USE FEES. (a) The 09 legislature finds that 10 (1) the implementation of a state water rights system by the Department of 11 Natural Resources cannot be accomplished without adequate financing; 12 (2) financing to implement the state water rights system has been insufficient, 13 which has resulted in 14 (A) delays in the processing of applications for grants of rights and
01 permits for use of state water and amendment of those rights and permits; and 02 (B) incompletion of other administrative duties relating to the state 03 water rights system; 04 (3) a long-term financing mechanism must be established to provide for 05 adequate financing and provide for a more predictable appropriation and staffing level at the 06 Department of Natural Resources from year to year; and 07 (4) the establishment of fees for the use of state water would permit the 08 Department of Natural Resources to charge holders of state water rights and other permitted 09 or authorized users of state water for a portion of the costs associated with that department's 10 management of the state water rights system, based on their use of state water. 11 (b) It is the policy of the state to authorize the Department of Natural Resources to 12 assess a reasonable fee for use of state water to provide more adequate financing of the state 13 water rights program administered by that department. 14 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 FINDINGS, POLICY, AND PURPOSE RELATING TO AUTHORIZATIONS FOR 17 CERTAIN TEMPORARY USES OF STATE WATER. (a) The legislature finds that 18 (1) many construction, development, commercial, and private activities 19 require an authorization for the temporary use of the state's water without the need to acquire 20 a permanent right to appropriate water; 21 (2) for many years, in appropriate circumstances the Department of Natural 22 Resources has issued revocable permits for the temporary use of state water under its 23 authority implied under AS 46.15 but not expressly provided in AS 46.15; and 24 (3) the legislature validates and affirms that temporary permits authorizing the 25 temporary use of state water continue to be appropriate under AS 46.15. 26 (b) It is the policy of the state to expressly confirm in the Department of Natural 27 Resources the authority to issue authorizations for temporary use of water subject to 28 appropriate conditions and limitations set by the Department of Natural Resources. 29 (c) The purpose of the enactment of AS 46.15.155 in sec. 8 of this Act is to 30 (1) confirm the authority of the Department of Natural Resources to issue 31 authorizations for temporary use of water; and
01 (2) affirm the validity of existing temporary permits for the use of state water 02 issued before the effective date of this Act that may have been called into question by the 03 rationale used by the court in Greenpeace, Inc. v. Alaska Department of Natural Resources, 04 3AN-00-345 Civil. 05 * Sec. 3. AS 37.05.146(b)(4) is amended by adding a new subparagraph to read: 06 (XX) state water resources income account (AS 46.15.025); 07 * Sec. 4. AS 46.15.020(b) is amended to read: 08 (b) The commissioner shall 09 (1) adopt procedural and substantive regulations to carry out the 10 provisions of this chapter, taking into consideration the responsibilities of the 11 Department of Environmental Conservation under AS 46.03 and the Department of 12 Fish and Game under AS 16; 13 (2) keep a public record of all applications for permits and certificates 14 and other documents filed in the commissioner's office; and shall record all permits 15 and certificates and amendments and orders affecting them and shall index them in 16 accordance with the source of the water and the name of the applicant or appropriator; 17 (3) cooperate with, assist, advise, and coordinate plans with the 18 federal, state, and local agencies in matters relating to the appropriation, use, 19 conservation, quality, disposal, or control of waters and activities related thereto; 20 (4) prescribe fees or service charges for any public service rendered; in 21 this paragraph, "fees" includes fees for the use of state water under a certificate 22 of appropriation, a permit, or other authorization under this chapter, based on 23 the quantity of water certificated, permitted, authorized, or used; 24 (5) before February 1 of each year, prepare a report describing the 25 activities of the commissioner under AS 46.15.035 and 46.15.037; the commissioner 26 shall notify the legislature that the report is available; the report must include 27 (A) information on the number of applications and 28 appropriations for the removal of water from one hydrological unit to another 29 that were requested and that were granted and on the amounts of water 30 involved; 31 (B) information on the number and location of sales of water
01 conducted by the commissioner and on the volume of water sold; 02 (C) recommendations of the commissioner for changes in state 03 water law; and 04 (D) a description of state revenue and expenses related to 05 activities under AS 46.15.035 and 46.15.037. 06 * Sec. 5. AS 46.15 is amended by adding a new section to article 1 to read: 07 Sec. 46.15.025. State water resources income account. The state water 08 resources income account is created in the general fund. Under AS 37.05.146(b), fees 09 for the use of state water under a certificate of appropriation, permit, or other 10 authorization under this chapter shall be accounted for separately in the account and 11 appropriations from the account are not made from the unrestricted general fund. The 12 legislature may appropriate money from the account for expenditure by the 13 Department of Natural Resources for necessary costs in implementation of water 14 resources programs authorized under this chapter or for any other public purpose. 15 * Sec. 6. AS 46.15.035(a) is amended to read: 16 (a) A significant amount of water, as determined by the department by 17 regulation, [WATER] may not be removed from the hydrologic unit from which it 18 was appropriated to another hydrologic unit, inside or outside the state, without being 19 returned to the hydrologic unit from which it was appropriated nor may a significant 20 amount of water, as determined by the department by regulation, be appropriated 21 for removal from the hydrologic unit from which the appropriation is sought to 22 another hydrologic unit, inside or outside the state, without the water being returned 23 to the hydrologic unit from which it is to be appropriated, unless the commissioner 24 (1) finds that the water to be removed or appropriated for removal is 25 surplus to needs within the hydrologic unit from which the water is to be removed or 26 appropriated for removal, including fishing, mining, timber, oil and gas, agriculture, 27 domestic water supply, and other needs as determined by the commissioner; 28 (2) finds that the application for removal or appropriation for removal 29 meets the requirements of AS 46.15.080; and 30 (3) assesses a water conservation fee under (b) of this section. 31 * Sec. 7. AS 46.15.035(e)(2) is amended to read:
01 (2) "hydrologic unit" means a hydrologic subregion established by the 02 United States Department of Interior, Geological Survey, on the "Hydrologic Unit 03 Map-1987, State of Alaska"; "hydrologic unit" includes the water of an ocean that 04 is adjacent to a hydrologic subregion of the state.["] 05 * Sec. 8. AS 46.15 is amended by adding a new section to read: 06 Sec. 46.15.155. Authorization for temporary use of water. (a) 07 Notwithstanding any contrary provision of this chapter, the commissioner may 08 authorize the temporary use of a significant amount of water, as determined by the 09 department by regulation, for a period of time not to exceed five consecutive years, if 10 the water applied for has not been appropriated in accordance with this chapter. The 11 commissioner may extend an authorization under this section for one additional term 12 of five consecutive years. 13 (b) Notwithstanding any contrary provision of this chapter, an authorization 14 for a temporary use of less than a significant amount of water is not required under 15 this section unless the commissioner has determined by regulation that the use may 16 have an adverse impact on other water uses and that an authorization must be obtained 17 from the department. 18 (c) The issuance of an authorization for temporary use of water under this 19 section does not establish a right to appropriate water. The temporary use of water 20 under an authorization remains subject to appropriation under this chapter. 21 (d) Notwithstanding any contrary provision of this chapter, the commissioner 22 is not required to provide public notice under AS 46.15.133 of a proposed 23 authorization for temporary use of water. 24 (e) The provisions of AS 46.15.080 do not apply to the issuance or extension 25 under this section of an authorization for temporary use of water. 26 (f) The commissioner may impose reasonable conditions or limitations on an 27 authorization for temporary use of water to protect the water rights of other persons or 28 the public interest. 29 (g) Upon approval by the department, an authorization under this section may 30 be transferred to another person under the same conditions and limitations under 31 which the authorization was issued.
01 (h) A person to whom an authorization for temporary use of water was issued 02 under this section may allow another person to use the authorization, consistent with 03 the conditions and limitations of the authorization. 04 (i) The commissioner may modify, suspend, or revoke an authorization issued 05 under this section if the commissioner determines it necessary to protect the water 06 rights of other persons or the public interest. 07 * Sec. 9. AS 46.15.180(a) is amended to read: 08 (a) A person may not 09 (1) construct works for an appropriation, or divert, impound, withdraw, 10 or use a significant amount of water from any source without a permit, [OR] certificate 11 of appropriation, or an authorization issued under this chapter; 12 (2) violate an order of the commissioner to cease and desist from 13 preventing any water from moving to a person having a prior right to use it; 14 (3) disobey an order of the commissioner requiring the person to take 15 steps to cause the water to move to a person having a prior right to use it; 16 (4) fail or refuse to install meters, gauges, or other measuring devices 17 or control works; 18 (5) violate an order establishing corrective controls for an area or for a 19 source of water; 20 (6) knowingly make a false or misleading statement in a declaration of 21 existing right. 22 * Sec. 10. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 VALIDITY OF EXISTING TEMPORARY PERMITS ISSUED BEFORE THE 25 EFFECTIVE DATE OF THIS ACT. (a) A temporary permit issued before the effective date 26 of this Act by the Department of Natural Resources under AS 46.15 authorizing the temporary 27 use of water is valid and remains in effect, notwithstanding that public notice was not 28 provided under AS 46.15.133 or the criteria set out in AS 46.15.080 were not applied before 29 the temporary permit was issued. 30 (b) A temporary permit described in (a) of this section shall be considered to be an 31 authorization for temporary use of water under AS 46.15.155, enacted by sec. 8 of this Act, as
01 if AS 46.15.155 had been in effect at the time the temporary permit was issued. Such a 02 temporary permit is subject to the terms and conditions set out in the temporary permit and is 03 subject to the requirements of AS 46.15.155, enacted by sec. 8 of this Act. 04 * Sec. 11. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 TRANSITION: REGULATIONS. (a) Under AS 44.62.125(b)(6), the regulations 07 attorney may change the term "temporary water use permit" in regulations of the Department 08 of Natural Resources concerning water use to "authorization for temporary use of water" as 09 consistent with this Act. 10 (b) To the extent that the regulations are not inconsistent with this Act, regulations 11 relating to water management adopted by the Department of Natural Resources under 12 AS 46.15 and in effect on the effective date of this Act remain in effect and may be 13 administered and enforced by the Department of Natural Resources. 14 * Sec. 12. This Act takes effect immediately under AS 01.10.070(c).